1. ' By a short order dated 25-2-1987 the above appeals were allowed for the reasons to be recorded later. These are the reasons for the same.
2. ' This judgment will govern F.RA. No, 266 of 1986 and F.RA. No, 267 of 1986, as the landlords/appellants in the two cases are same, and the ejectment was sought on the common ground of personal use.
3. ' The appellants filed two ejectment applications against the respondents inter alia alleging therein that late Mr. Aqil Hussain Jaffery was the owner and landlord of the Plot No, 4-F-114, and the bungalow constructed thereon situated at Nazimabad IV, Karachi-18. That the Opponent/respondent Shafi Ahmed is tenant in respect of the main/larger portion of the said bungalow at monthly rent of Rs,500, while Muhammad Anwar opponent/respondent was tenant in respect of the smaller portion of the said bungalow at monthly rent of Rs,300 . That Mr. Syed Aqil Hussain Jaffery died on 6th April; 1981, leaving behind the applicants/appellants as his only heirs.
4. That the applicants/appellants required the above premises in good faith for their own occupation and residence.
5. ' It was further stated that the applicant No, 1 is a widow now, and it is not possible for her to live in Lahore with her 12 sons and daughters, and she wishes to shift to Karachi since long. That the applicants requested the opponents orally to vacate premises and even a written notice was served on opponent Anwer on 3-8-1982, but they have refused to vacate the premises.
6. ' The opponents/respondents filed written statements in which they stated that the applicants did not require the premises in case for their bona fide use and occupation, but actually they want to sell the house in question. It was further stated that the applicants are permanently settled in Lahore, and they have no intention to shift to Karachi. It was further stated that late Syed Aqil Hussain Jaffery had asked the opponents to vacate the premises as he wanted to sell the same, and on his death, his heirs sent the notices to the opponents only for the said purpose.
7. ' On the pleadings of the parties, the learned Rent Controller, framed the following issues:--
(1) Whether the premises, in question is required by the applicants in good faith?
(2) What should the order be?
8. ' The learned Rent Controller decided the Issue No, 1 against the appellants/applicants, and has dismissed the ejectment application. The appellants have therefore come in these appeals.
9. ' I have heard Mr. N.M. Shaikh, Advocate for the appellants, and Mr. S. Mukhtar Hussain Naqvi for the respondent.
10. ' The learned Advocate for the appellants contended that the appellants were originally residing at Karachi, but their ancestor Syed Aqil Hussain Jaffery had some business at Lahore, therefore, they shifted to Lahore. Now they have decided to settle at Karachi, and that they have no other house at Karachi in which they can reside. He has relied on PLD 1984 Karachi page 14, 1984 CLC page 2531.
11. ' On the other hand Mr. S. Mukhtar Hussain, Advocate for the respondents contended that the appellants did not require the premises in good faith, and that' they intend to sell the same to some one. He has also relied upon PLD 1984 Karachi page 14.
12. ' I have considered the contentions of the learned counsel, and have gone through the record and proceedings of the case, and have also considered the case-law cited by the learned counsel of the parties.
13. ' On the side of the appellants Syed Babar Hussain Jaffery appellant No, 3 filed his own affidavit supporting the facts mentioned in the ejectment application. He has also produced Special Power of Attorney Exh. 0/1. The respondents have also produced through him a post card Exh. 0/2 and the Rent Agreement Exh. 0/3.
14. ' On the other hand respondent Shafi Ahmed has filed his own affidavit in Rent Case No, 1641 of 1984 and has also examined one Muhammad Aijaz Ali a property dealer Exh.4. This witness has also produced a photo copy of entry Exh.4. In Rent Case No,1642 of 1984 respondent K.M. Anwer has filed his own affidavit. He has also examined witness Muhammad Aijaz Exh. 5, this witness has produced the photo copy of the entry from his register as Exh. 5-A.
15. ' The evidence of appellant Babar Hussain shows that their family consists of 13 members. That they want to settle in Karachi now, and the premises in question are required by them for their personal bona fide use. He has also stated that they do not own any other premises at Karachi. He has denied a suggestion that they want to sell the premises in dispute. In cross-examination in Ejectment Case No, 724 of 1985 a notice dated 3-8-1982 was got produced through him as Exh. 0/4 which was sent by Mst. Nusrat to respondent Anwer asking him to vacate the premises, as the same were required by her bona fide for her occupation and that of her children. The appellant has further stated in cross-examination that they have only one house at Lahore which is constructed on 400 sq. Yards.
16. ' The evidence of respondents shows that late Syed Aqil Hussain Jaffery intended to sell the above premises and had therefore written a post card Exh. 0/2 to respondent Shafi Ahmad. That on his death appellant Amir Azam had approached the respondents and one Muhammad Sadiq an Estate agent for the sale of the above premises before filing of the ejectment applications. In cross-examination both the respondents have shown ignorance whether appellants own any other house at Karachi.
17. ' One Muhammad Aijaz examined by the respondents have stated that he is a property dealer and runs Estate agency in the name of "New A. Siddique Property Dealer". His office is situated at 3-D- 8/39-A, Nazimabad, Karachi. According to him one Amir Azam had contacted him in 1982 for selling his property bearing No, 4-F, 11/14, Nazimabad, Karachi. He had made such entry in the register and has produced photo copy of such entry as Exh.5-A. That Amir Azam had demanded Rs,4,00,000 for the above property.
18. ' However so far evidence of witness Muhammad Aijaz is concerned, his evidence is of no help to the respondents inasmuch as the parentage and address of Amir Azam is not mentioned in the entry. He states that he had shown the premises in question to certain persons with great difficulty as the same were occupied by the tenants, but he does not say that the respondents were occupying the said premises as tenants. Moreover the name of Estate agent given, by respondents was Muhammad Siddique, while the name of witness is Muhammad Aijaz, and according to him the name of his Estate agency is "New A. Siddique Property Dealer". Even no entry number is mentioned, nor date on which Amir Azam had contacted him is mentioned. In these circumstances the evidence of this witness could not be relied upon.
19. ' Even otherwise merely because the ancestor of the appellants was I interested to sell the premises in dispute at one stage, will not mean that the A appellants still intended to sell the same.
20. ' In Rajab Ali v. Darius Khandawala and another (PLD 1984 Karachi page 14) relied upon by the learned counsel appearing for both the parties, Mr. Justice Munawar Ali Khan, J. (as he then was) held:-- "That the landlord is absolutely free to live in his own house, once he has elected to do so, his demand for eviction of his tenant from the said house would be presumed to be bona fide and based on good faith, unless mala fides are alleged and proved against him by the tenant."
21. ' In the above cited case it was further observed that: "Ejectment---Personal requirement---Landlord succeeding . In establishing his case on the ground of personal requirement---Desire of landlord to sell disputed house, should not be permitted to come in his way in getting his tenant ejected."
22. ' In Muhammad Ishaque v. Fateh Muhammad and others (1984 CLC page 2527) it was held by Fakhruddin H. Shaikh, J.: "The landlord's statement on Oath in conformity with the pleadings, if shattered in cross-examination, and if not disproved by evidence in rebuttal shall be sufficient for recording finding in favour of landlord". In this decision the learned Judge had relied upon 1981 CLC page 327 also.
23. ' In view of the above discussion I have come to the conclusion that the appellants require the disputed premises bona fide for their personal use and not for sale. Therefore these appeals are allowed, the orders of the Rent Controller are set aside, with no orders as to costs. It is hereby ordered that the respondents should hand over vacant possession of the premises in question to the appellants within three months.
24. Appeals allowed.
25. 1995 MLD 456 [Karachi] &fore Tanzil-ur-Rahman, J Dr. SURAYYA MATIN and others---Appellants versus Mst. AKHTARUNNISA---Respondent First Rent Appeal No, 328 of 1985, decided on 19th May, 1990.
(a) Sindh Rented Premises Ordinance (XVII.Of 1979)--- ----S. 15---Expired agreement of tenancy---Effect---Agreement of tenancy though expired would continue in force, with liability of tenant to pay rent at the same rate and time---Consequences of non-payment of rent would however, be subject to law in force at the relevant time.. [p. 462] A Zarina Khawaja v. Agha Mahboob Shah PLD 1988 SC 190; Mehro Mal v. Habibur Rahman Khan PLD'
26. 1988 Kar. 240; Sayed Riaz All v. Shabbir Ahmed Khan 1971 SCMR 598; Amanat Khan v. Mst. Begum Jan and another 1979 SCMR 608; Abdul Rashid v. Saleh Muhammad 1980 SCMR 506; M/s. Tar Muhammad Janoo & Co. v. Taher All and others 1981 SCMR 93; Mrs. Alima Ahmed v. Amir Ali PLD 1984 SC 32; 1971 SCMR 598 32; 1979 SCMR 608; Abdul Rashid v. Saleh Muhammad 1980 SCMR 506; 1981 SCMR 93 and Alif Din v. Khadim Hussain 1980 SCMR 767 ref.
(b) Sindh Rented Premises Ordinance (XVII of 1979)--- ----S. 15---Expired agreement of tenancy---Acceptance of rent after specified date---Effect--- Acceptance of rent after specified date would not constitute "practice so as to change the terms of agreement or law; such act on the part of landlord, would, however, amount to condonation, with the result that term of agreement of tenancy as to payment of rent in advance, as agreed between parties, would remain binding on parties---Landlady having knowledge of delay in payments, her failure to take action under relevant term of tenancy would not render tenant liable to ejectment on the ground of alleged default. [p. 464] B Muhammad Saleh v. Muhammad Shafi 1982 SCMR 33 and Black's Law Dictionary ref.
(c) Sindh Rented Premises Ordinance (XVII of 1979)--- ----S. 15---Diminishing the value and utility of premises---Removal of wall under the mezzanine floor and iron shutters admitted by tenant---Such act on the part of tenant diminished the value and utility of premises in question. [p. 466] C
(d) Sindh Rented Premises Ordinance (XVII of 1979)------S. 15---Bona fide personal requirement of premises by sons of landlady--Non-submission of affidavits of sons of landlady in proof of their bona fide requirement---Effect---Affidavits of sons for whose use and occupation premises was required was not to be filed necessarily. [p. 467] D Muhammad Sharif v. M. S. Sultan 1981 SCMR 844; Dilshad Muhammad v. Mst. Zubaida Begum 1981 SCMR 895 and Arshad Umar and another v. Begum Nazrul Askari PLD 1985 SC 38 rel. Khalid Lateef for Appellants (in F.RA. No, 326 of 1985). HA. Rehmani for Respondent (in F.RA. No, 326 of 1985). HA.
27. Rehmani for Appellants (in F.RA. No, 328 of 1985). Khalid Lateef for Respondent (in F.RA. No, 328 of 1985).
28. Dates of hearing: 9th and 10th May, 1990.
29. ' These are two First Rent Appeals F.RA. No, 326/85 has been filed by the landlady and F.RA. No, 328/85 has been filed by the tenant. Both these Appeals arise out of an order dated 18-3-1985 passed by the learned Xth Senior Civil Judge/Rent Controller, Karachi in Rent Case No, 1385/75. I intend to dispose of these two appeals by this judgment.
30. ' Since these are two cross-appeals, instead of using the words appellant and respondent I will hereinafter mention them as landlady and tenant in order to avoid ambiguity.
31. ' On 7-5-1975, the landlady filed an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 for ejectment of the tenant from two shops in her tenancy on the grounds (i) default, (ii) impairing the value and utility of the premises and (iii) personal use of the landlady's husband and their children. The landlady's husband and Special Attorney examined himself only in evidence. The tenant's widow Dr. Surayya Matin examined herself and produced one witness in evidence only. The learned Rent Controller, by his aforesaid Order, allowed the application for ejectment in respect of one shop only on the grounds of impairing the value and utility of the premises and for personal use of the landlady's husband. The landlady has now filed F.RA. No, 326/85 against not allowing the application for both the shops and also on the ground of default. F.RA. No, 328/85 has been filed by the tenant against the said Order.
32. ' Mr. Khalid Latif, learned counsel for the landlady, arguing the Appeal (F.RA. No, 326/85), submitted that the learned Rent Controller has erred in giving his finding on issue of default against the landlady. He refers to paragraph 4 of the affidavit-in-evidence of the husband and Attorney of the landlady, which mentions the several payments made late by the tenant in contravention of clause 4 of the Agreement of Tenancy, dated 7th April, 1963, which requires payment of monthly rent to be made in advance during the first week of each month. The exact details are reproduced as under:- -{{TABLE}} Date of receipt Cheque No, & date & deposit with the Bank (UBL) For the month of Amount Rs, 23-9-72 PAB 437015 22-9-72 Aug./Sept. 72 1040 30-11-72 " 340864 29-11-72 Oct./Nov. 72 1040 10-1-73 341061 9-1-73 Dec. 72 520 6-2-73 341563 6-2-73 Jan. 73 520 29-3-73 342467 28-3-73 Feb./Mar. 73 1040 8-5-73 342347 8-4-73 April 73 520 15-6-73 341877 15-6-73 May 1973 520 00-9-73 434117 10-8-73 June. 73 520 12-9-73 (CBL) 434456 10-9-73 Jul./Aug. 73 '1040 12-12-73 CA 1 582103 11-12-73 Sept./Oct./Nov. 73 1560 7-3-74 584968 6-3-74 Dec./Jan. 74 1040 22-4-74 018788 20-474 Feb./Mar. 74 1040 17-5-74 PAC 18745 16-5-74 Apr./May. 74 1040 2-7-74 PAC 19187 27-6-74 June 74 520 3-8-74 19563 31-7-74 July 74 520 3-9-74 C 407257 31-8-74 August 74 520 16-10-74 " 407275 15-10-74 Sept./Oct. 74 1040 3-5-75 PAB 438498 29-4-75 April 74 520 {{TABLE}} ' Learned counsel further submitted that the tenant was bound to adhere to the terms of agreement which, inter alia, provides that the rent shall be paid monthly in advance. Although the agreement executed between the parties expired in 1968, the condition of payment of rent in advance remained in vogue. Reliance is placed on Zarina Khawaja v. Agha Mahboob Shah (PLD 1988 SC 190), Mehro Mal v. Habibur Rahman Khan (PLD 1988 Karachi 240).
33. ' In view of the pronouncement of the Hon'ble Supreme Court in Zarina Khawaja's case, Mr. Habib A.
34. Rehmani, learned counsel for the tenant, does not dispute that the tenant remains liable to pay rent in advance in the first week of every month as provided in the Agreement.
35. ' Learned counsel for the landlady, on the issue of default, placed his reliance on the cases, namely,
(i) Sayed Riaz Ali v. Shabbir Ahmed Khan (1971 SCMR 598), (ii) Amanat Khan v. Mst. Begum Jan and another (1979 SCMR 608), (iii) Abdul Rashid v. Saleh Muhammad (1980 SCMR 506), (iv) M/s. Tar Muhammad Janoo & Co. v. Taher Ali and others (1981 SCMR 93), and (v) Mrs. Alima Ahmed v. Amir Ali (PLD 1984 SC 32).
36. ' In the first case (1971 SCMR 598), it was held that:-- "In law the petitioner could not lead evidence in variation of the terms and conditions of the written agreement of lease (sections 91 and 92, Evidence Act). Moreover, the receipt of rent by the respondent for several months at a time showed that the landlord had condoned the default and not that he had consented to vary the terms and conditions of lease regarding payment of rent."
37. ' In the second case (1979 SCMR 608), it was observed that:-- "Admittedly, no cash rent for the period from August, 1974 to December, 1974, was ever paid by the petitioner to his landlord. He failed to prove to the satisfaction of the Courts below that he was entitled to the adjustment of the rent due for this period in question towards the payment allegedly made to the mason for repairs to the house and in the shape of the bond of the value of Rs,100. On this finding therefore, it follows that even up-to-date the rent for this period in question was neither tendered nor paid to the landlord and this default on his part was wilful and contumacious. A fortiori the rent remitted for the subsequent period from January, 1975 to June, 1975 by money order in July, 1975 did not amount to a valid tendered rent without having cleared the arrears due for the period from August, 1974 to December, 1974. Moreover, he had failed to pay or tender the monthly rent within 60 days from the month for which the rent was payable and for this reason the tender of the arrears in lump sum in July, 1975 did not condone the default thus committed by him."
38. ' In the third case Abdul Rashid v. Saleh Muhammad (1980 SCMR 506), it was observed that:- "It has been held time and again that in such cases the parties cannot contract themselves out of the provisions of the law on the subject namely, the West Pakistan Urban Rent Restriction Ordinance.
39. ' Similarly neither party can plead a practice which is contrary to the said law. Moreover, the mere fact that a landlord accepts a delayed payment of rent by the tenant on a number of occasions, cannot be said to have given rise to any practice whitling down the requirement of law that the rent has to be paid by the tenant by the 15th of every month."
40. ' In the fourth case (1981 SCMR 93), it was held that:-- "It is the duty of the tenant to pay or at least tender the rent to the landlord and he cannot be allowed to plead that the landlord did not make any effort to collect the rent. The mere fact that a tenant has made it a habit not to pay the rent regularly every month, and that the landlord has tolerated his default for some time and accepted the rent paid at irregular intervals cannot in any way, be deemed to have established a practice of payment of rent whenever the tenant pleases or affect the liability of the tenant to pay the rent unless the landlord comes and collects it. Nor does it absolve the tenant from paying the rent every month. A landlord's acceptance of the rent paid to him at irregular intervals does not in any way, show that he does not expect it to be paid regularly every month as the reason for receiving the delayed payment might be his decency, his desire to accommodate his tenant, his pre-occupation with his own work, his hesitation to go to Courts of law or his reluctance to incur the expenses and hazards of litigation. The tenant cannot be allowed to take advantage of his own negligence or of his having taken advantage of deliberate non- payment of rent in time every month on the ground that the landlord has been accepting the same and argue that the same had given rise to a practice of the irregular payment of rent."
41. ' In the fifth case (PLD 1984 SC 32), it was held that:- "That the respondent was clearly in default in paying or tendering the rents for April and May, 1970, and from October, 1970 to December, 1970. There was no plausible explanation for such default. He was, therefore, liable to ejectment."
42. ' On the other hand, learned counsel for the tenant submitted that he does not dispute the liability of the tenant to pay rent under the expired agreement of tenancy and that the rents for several months, as detailed in the affidavit-in-evidence on behalf of the landlady, was paid by cheques by depositing the same in the landlady's bank account with certain amount of delay. The late payments were, however, accepted by the landlady, without the slightest objection, and therefore, it was not open to the landlady to seek ejectment of the tenant on the basis of such late payments.
43. The delay in payment, as submitted by the counsel, stood condoned. Reliance is placed by Mr. Rehmany on Alif Din v. Khadim Hussain (1980 SCMR 767), wherein it was observed that:- "The fact that the landlord had in the past been accepting the rent after the due dates does not mean that the relevant terms in the lease deed had become inoperative. It only meant that the respondent had condoned the default in that instance and could not plead it as a ground for ejectment of the petitioner."
44. ' Learned counsel further submitted that it was a practice of the landlady to accept rent in lump sum as is evident by the statement of payments of rent. Reliance is placed by him on 1989 SCMR 403, wherein it was observed that:-- "We find no ground either in law or on merits is made out for interference with the impugned judgment of the High Court, for, the finding of fact recorded by the two Courts below that it was the practice of the petitioners to collect the amount in lump sum has been based on the admitted documents which clearly prove payment of rent on yearly basis."
45. ' Reliance is also placed on Abdul Aziz v. Abdul Ghani (1986 SCMR 1857), wherein it was observed that:- "There is sufficient evidence on the record that it was the landlord who had adopted a practice of receiving the arrears of rent in lump sum. The perusal of the details of the receipts covering the period July, 1974 to May, 1978 given in the judgment of the High Court shows that on two occasions the landlord received the arrears of rent after e'ght months, on one occasion after a period of more than two months without any objection. This practice was in vogue from the very beginning of the tenancy. Though the rent had not been paid by the respondent to the landlord as required under the law but the conduct of the petitioner himself was such which furnished sufficient justification to the appellate Court to exercise its discretion against him in dismissing his eviction petition."
46. ' Except for the principles laid down in the cases cited by Mr. Khalid Latif, as also admitted by him during the course of arguments, they are distinguishable on facts inasmuch as in the said cases the rent was due and payable by the tenant before filing the application for ejectment whereas in the instant case there was no rent due and payable on the date of filing ejectment application.
47. ' I have given my anxious thought to the question whether the tenant, in the circumstances of the case, can, be ejected on the ground of the alleged default. Admittedly, the agreement of tenancy, though expired, continued in force, with a liability of the tenant to pay rent at the same rate and time as held by the Hon'ble Supreme Court in Zarina Khawaja's case. The liability to pay the rent will, therefore, be determined in accordance with the agreement, as to the rate of rent and the date of payment. But the consequence of such nonpayment will be subject to the law of the land. If the tenant agrees to pay rent in advance, he continues to be bound by the said term of tenancy. If he fails to pay or tender rent due by him in respect of the rented premises within 15 days after the expiry of the time fixed in the agreement of tenancy, he is liable to be ejected. In the instant case, the tenant had agreed to pay monthly rent in advance in the first week of the month for which it was due. Thus, he is bound to pay the same accordingly and if he fails to pay within 15 days after it has fallen due under the agreement as also provided in section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, the Controller may make an order, directing him to put the landlord in possession of the rented premises. In the instant case, the tenant was inducted into possession of the premises under agreement dated 7th April, 1963. He is alleged to have made late payments in respect of several months, with intervals, as detailed in the affidavit. There is some delay of several weeks in making such. Payments, which were, however, accepted by the landlady without the slightest protest, objection or reservation or even showing the sign of displeasure over such late payments. Clause (10) of the agreement provided that "in case of breach of any condition of tenancy, the lessee shall be liable to ejectment irrespective of the terms hereinbefore contained, after having been given 15 days' notice to remedy the complaint of the lessor". Admittedly no such notice was given; not even an oral complaint was ever made to the tenant about late payments on 18 occasions during the entire period of 144 months asking him to make payments in accordance with the agreement, "to remedy the complaint".
48. ' Learned counsel for the tenant pleads condonation on the part of the landlady and places his reliance on the case of Najmuddin v. Zamir Ahmed (PLD 1982 Kar. 188), wherein irwas observed that:-- "Therefore, it cannot be said that the appellant committed wilful default in payment of rent for the months of March, April and May, though, no doubt, that the respondent had not paid the rent for the said months in accordance with law by sending the same by money order or by depositing the same in Court".
49. ' Learned counsel also placed his reliance on the following observations of Naimuddin, J. (now Judge, Supreme Court) in the aforesaid case: "As regards the submission that there could be no waiver or acquiescence against the statute it may be stated that if law confers a right or advantage on a person exclusively for his own benefit and it does not affect the rights of another person and is not against the public policy, then such a right can be waived and any liability incurred by breach of such provisions may not be enforced and acquiesced."
50. ' Reliance is also placed by him on the case of K.C. Mamoo v. Mrs. Badrunnisa (1985 CLC 332), wherein, inter alia, it was held "that the respondent landlady have waived right by accepting rent from the tenant". The learned Single Judge in the aforesaid case, in fact, observed that "I am of the view that it is established that the respondent waived the conditions by accepting rent from him".
51. ' On the other hand, Mr. Khalid Latif, learned counsel for the landlady has placed his reliance on the case of Muhammad Saleh v. Muhammad Shaft (1982 SCMR 33), wherein on the question or waiver, it was observed that:-- "in order to establish 'waiver by conduct' it must be shown, firstly, that the person entitled to the right had knowledge of the breach thereof, and secondly, that he had acquiesced or failed to act, notwithstanding that knowledge. Therefore, mere failure to object or to take action due to ignorance of the breach of his right cannot be said to give rise to any "waiver by conduct".
52. ' Even otherwise mere inaction or allowing an opportunity to pass by does not necessarily amount to waiver because when, for instance, a tenant consistently fails to pay rent, being aware of his obligation to pay it, or where there is delay by the landlords in filing an ejectment petition out of decency to the tenant or hesitates in going to the Court, or for any other reason, the tenant cannot be allowed to take up the plea that the landlord had, by his conduct in failing to take action, waived his right to receive the rent. It has been held that even gratuitous indulgence shown by one of the parties does not constitute estoppel or waiver. Omission to enforce one's legal right strictly cannot give rise to an inference that the right has been abandoned."
53. ' Payment of rent is a matter of contractual obligation. To enforce that obligation, the concept of waiver and condonation cannot thus be ruled out. In Black's Law Dictionary, waiver has been defined as: "The intentional or voluntary relinquishment of a known right, or such conduct as warrants an inference of the relinquishment of such right, or when one dispenses with the performance of something he is entitled to exact or when one is in possession of any right, whether conferred by law or by contract, with full knowledge of the material facts, does or forbears to do something the doing of which or the failure of forbearance to do which is inconsistent with the right, or his intention to rely upon it. The renunciation, repudiation, abandonment, or surrender of some claim, right, privilege, or of the opportunity to take advantage of some defect, irregularity. A doctrine resting upon an equitable principle, which Courts of law will recognize.
54. ' Waiver is essentially unilateral, resulting as legal consequence from some act or conduct of party against whom it operates, and not act of party in whose favour it is made is necessary to complete ....
55. ' A waiver is implied where one party has pursued such a course of conduct with reference to the other party as to dvidence an intention to waive his rights or the advantage to which he may be entitled, or where the conduct pursued is inconsistent with any other honest intention than an intention of such waiver, provided that the other party concerned has been indicted by such conduct to act upon the belief that there has been a waiver, and has incurred trouble or expense thereby. To make out a case of implied "waiver" of a legal right, there must be a clear, unequivocal and decisive act of the party showing such purpose, or acts amounting to an estoppel on his part".
56. ' Besides, I may also refer to section 51 of "(sic)" which remained as Law in force in Turkey till 1926. A Qadi of Hims, Khalid Al-Atasi, in his Sharh of the same in (Vol. I) writes that: "sometimes the lapsing of a right capable of being lapsed, in express and sometimes it is incumbent and sometimes it is by indication or by implication except in the case of a right which under the (Shari'ah) is not liable to be lapsed".
57. ' Thus, the waiver or condonation otTh right, legally capable of being waived or condoned may either be made expressly or it may be inferred from the conduct of the party and all other attending circumstances of the case.
58. ' After considering the facts and cited law, I do not agree with the learned counsel for the tenant that the acceptance of rent on the aforesaid occasions constitutes a practice, so as to change the terms of agreement or the law, but I do agree with hint that it amounts to condonation; with the result that the term of agreement of tenancy as to the payment of rent in advance, as agreed between the parties, remains binding on the parties. Since the landlady had knowledge of delay in payments, but failed to take action under clause 10 of the agreement, the tenant is not liable to be ejected on the ground of the said alleged default.
59. ' As regards the second ground of ejectment viz. Impairing the value and utility of the premises in question against which Appeal No, 328/85 has been preferred by the tenant, Mr. HA. Rehmani submits that the landlady has failed to prove the same. He further submits that the tenant got another shop premises in 1969 under a separate agreement of tenancy from another landlord. The said premises are situate just in the rear of the shops in question. The tenant, as alleged, demolished the dividing wall between the premises in question and the other one, with the consent of the landlady. The landlady and her husband gave such consent when they came to the tenant's clinic in connection with their medical treatment. In any case, it is submitted by him that the tenant has produced an Architect as an expert witness, wherein it has been opined by him that the removal of the said dividing wall did not impair the utility and value of the premises.
60. ' On the other hand, Mr. Khalid Latif, learned counsel for the landlady submits that in the affidavit of the landlady's Attorney and husband it has been clearly stated in paragraph 7 that the tenant has committed acts, which have materially impaired the value and utility of the landlady's shop. It seems advantageous to reproduce paragraph 7 of his Affidavit, which reads as under:---- "The opponents took shops adjoining the back side of the applicant's shops. The applicant's shop and the shops on the back side which adjoin each other had a common dividing wall. The applicant's shops are already completely built when rented out to the opponents while the back side was lying vacant. However, after some time the said back side shops were built up and were taken on rent by the opponents. Even at that time the common wall was very much there. However, the opponents without the permission, approval or consent of the applicant demolished the back side wall of the applicant's shops and joined her shops with those on the back side belonging to someone else with the result that the applicant's shops and the shops on the back side thereof now constitute a single premises having opening on the main Tariq Road, as well as towards back- lane. This has obviously impaired the value and utility of the applicant's shop. I file herewith a drawing showing the location of the said applicant's shops and those on the back side thereof and the removal of the wall on the back side of the applicant's shops, as Exh.
10. The opponents also removed without the permission, approval or consent of the applicant the supporting wall beneath the mezzanine floor and have thereby weakened the structure. The opponents have also removed the iron shutters of the shops and have replaced them with wooden doors. All this was also done without the permission, approval or consent of the applicant."
61. ' It appears that the tenant, in her affidavit of evidence in rebuttal to the above affidavit, has referred to the removal of the rear wall only and that too with permission of the landlady, but does not seem to have adverted to the supporting wall beneath the mezzanine floor and the removal of the iron shutters in the shop in question and replacing them with wooden doors. No doubt, the tenant has examined an Architect, as his witness, who has also produced his certificate issued by him, but it mentions the wall under mezzanine floor only. Even if it is taken to be a case of consent, as submitted by the counsel for the tenant, it will be relatable to the removal of the rear wall and not to the removal of the wall under the mezzanine floor or replacement of the iron shutters with the wooden doors. As regards the diminishing value and utility, the removal of the wall under the mezzanine floor and the iron shutters having not been denied by the tenant, will be deemed to have been proved and I find no justification to interfere with the findings of the learned Rent Controller that the value and utility of the shops in question has been impaired.
62. ' As regards the third ground of eviction viz. Personal need of the landlady's husband and her children, the learned Rent Controller has given his finding in the affirmative by holding that the landlady's, husband's requirement of the premises for his business is bona fide. The relevant observation of the learned Controller on the question of personal need are reproduced as under:-- - "The 'premises is admittedly being used as a clinic, where the opponent has an established medical practice. In my opinion if the opponent is rooted out from the premises that will affect her practice and also will come in the way of sick and disease who are accustomed to get treatment from the opponent's clinic. Moreover, the applicant has not given the details of the business, therefore, in my opinion one shop can be sufficient for the applicant to run a business.
63. ' Accordingly I hold that the applicant requires the premises i,e, only one shop in good faith for the purpose of running business by her husband."
64. ' It has come in evidence that the husband of the landlady has retired from service, which has not been disputed by the tenant. Furthermore, the landlady has six sons, 3 of whom are unemployed.
65. Her son Nafisuddin, a B.Sc. Previously employed with M/s. Special Pakistan Steel, is now unemployed as the Company has been wound up (Exh. 9-A). Her second son Nasimuddin, who holds diploma in Mech. Engineering, has no place to work as admitted by the tenant in his cross- examination and that he goes out for repairing cars at the customers' places. Another son, who holds B. Corn. Degree, is also jobless. The Rent Controller does not appear to have discussed the need of the landlady's children.
66. ' The learned Rent Controller has observed, as a reason for not allowing ejectment of both the shops that the landlady's husband has not disclosed the nature of business. This is a clear misreading of evidence. The husband/attorney, has stated in his evidence at page 35 (refer para. 6 of his affidavit) of the record, that he intends to carry on the business of General Merchandise. It further appears that the learned Rent Controller did not take into consideration the need of the sons as no affidavit was filed by the sons of the landlady for whom the premises is also required. It is now settled law that the affidavit of the sons for whose use and occupation the premises is required, is not to be filed necessarily. Reliance may be placed on the case of Muhammad Sharif v.
67. M. S. Sultan (1981 SCMR 844), Dilshad Muhammad v. Mst. Zubaida Begum (1981 SCMR 895) and Arshad Umar and another v. Begum Nazrul Askari (PLD 1985 SC 38).
68. ' The learned Rent Controller, while dealing with the need of the landlady, has also observed about the established medical practice of the tenant and the inconvenience of the patients. This approach of the learned Rent Controller can hardly be said to be justified in law or in the circumstances of the case. The tenant continues to being occupation of the other two shops of similar accommodation as that of the landlady, situate on Plot Nos. C-30 and C-32 just in the rear of the two shops in question, which, as stated by the learned counsel for the parties, are of the same area. In any case, the tenant is residing in a bungalow of 1000 sq. Yards, at a distance of about two furlongs in the same locality, which has now turned to be a commercial area, She may also carry on her practice there.
69. ' In the facts and circumstances of the case, I am convinced that one shop may be sufficient for running business by the landlady's husband. The son, who is B. Corn. May be engaged in the business of his father, but the son, who is a Contractor and holds B. Sc. Degree and the other son having diploma in Mechanical Engineering, do also require the shop premises for running their business.
70. ' For the reasons aforesaid, I modify the finding of the learned Rent Controller on personal need and hold that both the shops are required bona fide by the landlady for running business by her husband and the children. In result, the Appeal filed by the landlady being F.R.A. No, 326/85 is, as aforesaid allowed and the Appeal filed by the tenant being F.R.A. No, 328/85 is dismissed. There will, however, be no order as to costs.
71. ' The tenant is directed to vacate the premises within 2 (two) months subject to payment of rent regularly in accordance with law.
72. ' Before parting with the matter, it may be observed that the landlady will be at liberty to claim cost of reconstruction of the 2 walls demolished and iron shutters replaced, by separate proceedings, if so advised.